U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINTON, DC 

RECEIVED 

JAN 2 3 2017 

In the Matter of: 

FELTS FIELD AVIATION 

Respondent 

) 

) 

) 

) 

) 

_______________________ ) 

HEARING DOCKET 

Docket No: F AA-2015-3307 

Case No: 2015WP910090 

Judge J .E. Sullivan 

RESPONDENT'S MOTION TO DISMISS 

The Respondent, Felts Field Aviation, by and through its attorneys, BENJAMIN 

L. WYBORNEY and MARK J. CONLIN, move the Court for an Order to Dismiss in the 

above referenced matter. 

GROUNDS 

The Complainant, the FAA, is withholding "how the FAA calculated its proposed 

civil penalty ... "in violation of this Court's December 15, 2016 verbal Order to Produce 

by January 17, 2017, See Exhibit A, Transcript of Teleconference on December 15, 

2016, Page 64, Lines 11-16, Page 66, Lines 12-13, and Page 67, Lines 2-6. 

BASIS 

On September 22, 2015, the FAA, Northwest Mountain Region, ANM-7 

(hereafter "FAA") served the underlying Complaint on the Respondent's Attorney. 

On October 8, 2015, the Respondent's Attorney timely served an Answer on the 

FAA. 

MOTION TO DISMISS 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 Page 1 of7 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, WA 99201 

(509) 624-3020 
On October 13, 2015, the Respondent's Attorney served the Respondent's First 

Set oflnterrogatories and Requests for Production of Documents by Certified Mail on the 

FAA. 

On December 1, 2015, this Court issued an Order setting the Litigation 

Scheduling Conference for February 9, 2016. 

On February 9, 2016, the FAA failed to appear, without explanation, for the 

Scheduling Conference. See Transcript of Teleconference Hearing held February 9, 

2016, Page 4, Line 17. The Respondent's Attorney moved for a dismissal on the grounds 

that the FAA had failed to comply with this Court's December 1, 2015 Order and 

appeared to have abandoned the prosecution of the above captioned matter. See id. Page 

7, Line 20. 

On February 10, 2016, this Court issued a Show Cause Order ordering that the 

Motion to Dismiss was reserved and setting February 25,2016 as the FAA's Show Cause 

Deadline. 

On February 23,2016, the FAA responded to the Show Cause Order. 

On February 24, 2016, this Court issued an Order Finding Good Cause and setting 

a second Scheduling Conference for April 14, 2016. 

On April 14, 2016, this Court issued an Order Setting Litigation Dates and 

Procedures. That Order set April 29th as the date to Begin General Discovery, if not 

previously begun, June 301

h as the FAA Expert Disclosure Deadline, July 14th as the 

Respondent Expert Disclosure Deadline, and August 3 0

1

h as the Deadline for Completing 

General Discovery. 

MOTION TO DJSMJSS 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 Page 2 of7 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, WA 99201 

(509) 624-3020 
On July I, 2016, due to the lack of response to Interrogatories and the FAA's 

failure to make timely clisclosure of Expert Witnesses, the Respondent filed a Motion to 

Dismiss or In the Alternative, Request an Informal Conference. 

On July 7, 2016, this Court issued an Order acknowledging the FAA's 

Substitution of Counsel and Setting an Informal Conference for July 12th. The FAA's 

original attorney had separated from the FAA. The FAA substituted Ms. Stokley on July 

1, 2016. 

On July 11, 2016; 272 days after the Oct 13, 2015 date of service of the 

Respondent's First Set of Interrogatories and Request for Production of Documents, 11 

days after the June 30th Expert Witness Disclosure deadline, and one day prior to the July 

12'h Informal Conference on the matter, the FAA served the Respondent with the FAA's 

Response to the Respondent's First Set of Interrogatories and Request for Production of 

Documents. In that Response, the FAA identified Mr. Eric Wells as a Testifying Expert 

Witness, presented a heavily redacted Enforcement Investigative Report (EIR) as Exhibit 

C-1, and presented Mr. Wells Expert Opinion Report as Exhibit C-2. 

On July 12, 2016, this Court held an Informal Conference to address the 

Respondent's discovery concerns. The Respondent's concerns originally included the 

lack of any answer to interrogatories, the lack of disclosure of experts, and the difficulties 

meeting discovery deadlines induced by the FAA's lack of responsiveness. In response 

to the FAA's untimely Response to Interrogatories, the Respondent's concerns now 

included, the untimely disclosure of an Expert Witness, the unreasonable redactions in 

Exhibit C-1, "Statement of the Case," and the difficulties meeting discovery deadlines 

induced by the FAA. 

MOTION TO DISMISS 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 Page 3 of7 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
On July 14, 2016, this Court issued an Order finding sufficient time remained to 

avoid prejudicing the Respondent and allowed the FAA's Testifying Expert Witness. 

That Order also required that the FAA provide either a modified redacted copy of Exhibit 

C-1 or a privilege log justifying the redactions to the current Exhibit C-1 by July 22, 

2016. Finally, the Order also extended General Discovery by two weeks from August 30, 

2016 to September 16, 2016. 

On July 20, 2016, the FAA, through its July 201

h Supplemental Response to 

Respondent's First Set of Interrogatories and Requests for Production of Documents, 

provided both a modified redacted version of Exhibit C-1 (hereinafter "Supplemented 

Exhibit C-1) and a privilege log. The Supplemented Exhibit C-1 contained an additional 

four pages of documents. The four additional pages of documents contained the first 

page of the EIR which is a (FAA) FORM 2150-5 EA, and three pages of very heavily 

redacted supplemental information. 

The FORM 2150-5 indicated that, while Ms. Simone Clinton is the reporting 

Inspector, Mr. Eric Wells, the FAA's Expert Witness, is the signatory of the EIR as the 

"Team Coordinator." Further Mr. Eric Wells, the Expert Witness, is also the signatory of 

the EIR's Regional Division Review as the Approving Official. The EIR is essentially 

the research product of the FAA's Expert Witness, containing his "facts known, or 

opinions held". The Respondent found the Supplemented Exhibit C-1 and the privilege 

log generally inadequate. 

On August 9, 2016, based on its right to discover "facts known, or opinions held, 

by" a Testifying Expert Witness, and other discovery rights, the Respondent requested, in 

writing, a more compliant version of Supplemented Exhibit C-1. The FAA refused. 

MOTION TO DISMISS 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 Page 4 of7 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
On September 13, 2016, based on the fact that the EIR is the research and 

investigative product of the Expert Witness, and that pursuant to 14 C.P.R. § 13.220(e) 

Scope of discovery., " ... [a] party may discover facts known, or opinions held, by an 

expert who any other party expects to call to testifY at the Hearing", the Respondent again 

requested, in writing, an unredacted copy of the EIR. The FAA again refused. 

On September 16, 2016, the Respondent moved this Court for an Order to 

Compel Discovery of a more compliant version of Supplemented Exhibit C-1. 

On September 23, 2016, the FAA submitted an Opposition to the Respondent's 

Motion to Compel. 

On September 30, 2016, the Respondent submitted a Reply to the FAA's 

Opposition to the Respondent's Motion to Compel. 

On November 10, 2016, this Court conducted a Motion Conference on the 

Respondent's Motion to Compel. This Court continued the Motion Conference to 

December 15, 2016 

On November 14, 2016, this Court issued an Order that continued the Motion 

Conference to December 15, 2016. The Order further required that all parties read the 

decision issued in Airborne Maintenance and Engineering Services, FAA-2013-0291, 

2014 WL 4635559 (FAA Aug. 19, 2014), and that after reading the material, the parties 

should contact each other and determine whether they might be able to agree to the 

various discovery requests. 

On November 21, 2016, the FAA, through its November 21'1 Supplemental 

Response to Respondent's First Set of Interrogatories and Requests for Production of 

Documents withdrew, without substitution, its Testifying Expert Witness, Eric Wells. 

MOTION TO DISMISS 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 Page 5 of7 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, WA 99201 

(509) 624-3020 
Mr. Wells is the same untimely identified Testifying Expert Witness that this Court 

specifically allowed in its July 14th Order. 

On November 30, 2016, at the Respondent's Attorneys' request and initiation, the 

Respondent's and FAA's Attorneys held a Telephonic Conference in which the FAA 

confirmed that the FAA would not change its position on the discoverability of a more 

compliant version of Supplemented Exhibit C-1. 

On Dec 7, 2016, in light of the FAA's November 21st withdrawal of its Expert 

Witness, the Respondent filed a Supplemental Reply to the Complainant's Opposition to 

Respondent's Motion to Compel. 

On Dec 15, 2016, at the Continued Motion Conference, this Court partially 

granted the Respondent's Motion to Compel and Ordered "the FAA to disclose to the 

Respondent, in detail, how the FAA calculated its proposed civil penalty, which is a total 

of ... $11,000 on the violation that it alleges that the Respondent committed" See 

Exhibit A, Transcript of Teleconference on December 15, 2016, Page 64, Lines 5-16. 

After confirming the FAA's ability to comply with the Order, this Court further Ordered 

that "on or before January 17, 2017, the Court is directing [the FAA] to provide that 

information." See Exhibit A, Transcript of Teleconference on December 15, 2016, Page 

63, Lines 16-22 and Page 67, Lines 2-6. 

On January 17, 201 7, as of 5:00 pm, Pacific Standard Time, the FAA has failed to 

comply with this Court's Order to Produce. 

Comes now, this is the FAA's third failure to comply with an Order issued by this 

Court. The FAA failed to appear at the February 9, 2016 Scheduling Conference. This 

failure caused the Scheduling Conference to be rescheduled for April 14, 2016, a nine 

MOTION TO DISMISS 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 Page 6 of7 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
week delay. The FAA failed to disclose Expert Witnesses by June 30,2016. This failure 

caused the General Discovery deadline to be extended from August 30, 2016 to 

September 16, 2016, a two week extension. It remains to be seen what scheduling 

turbulence results from the FAA's current failure. 

The FAA's repeated failures to meet deadlines and to comply with this Court's 

Orders have caused nearly three months' delay; more when this current matter is 

resolved. These failures have unfairly prejudiced the Respondent and violated its rights 

to Due Process and Discovery. These failures have necessitated what should have been 

unnecessary pleadings. These unnecessary pleadings have caused unnecessary attorney's 

fees. Pursuant to 14 C.F.R § 13.218(f)(2) "Motion to Dismiss", the Respondent 

respectfully Moves for Dismiss. 

CONCLUSION 

For the foregoing reasons, this Court should grant the Respondent's Motion to 

Dismiss. 

RESPECTFULLY SUBMITTED this 17'11 day of January, 2017. 

MOTION TO DISMISS 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 

CONLIN, MALONEY & MILLER 

Benjamin L. Wybome , WSBA # 50070 

Attorney for Respondent 

421 W. Riverside Avenue, Suite 911 

Spokane, WA 99201 

(509) 624-3020 

Page 7 of7 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Motion to Dismiss has been served via U.S. Priority 

Mail on January 1 7, 2017 to the following: 

Judge J. E. Sullivan 

US. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave, SE (Ell-310) 

Washington, DC 20590 

Phone: 202-366-6941 

Fax: 202-366-7536 

Federal Aviation Administration 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Fatimah Stokley, Attorney 

Federal Aviation Administration 

Office of the Chief Counsel 

Enforcement Division, Western Team 

P.O. Box 920007 

Los Angeles, CA 90009-2007 

Fax: (310) 725-6816 

DATED this 17'h day of January, 2017 

Cindy ert 

Legal Assistant 

421 W. Riverside Avenue, Suite 911 

Spokane, WA 99201 

(509) 624-3020 
EXHIBIT A 

Transcript ofTe1econference on December 15,2016 

Extract of Pages 1 and 64-67 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

IN THE MATTER OF: 

FELTS FIELD AVIATION 

FDMS No. 

FAA-2015-3307 

1 

Respondent RF~'"'J::IVED 

Thursday, 

December 15, 2016 

DEC 3 0 2016 

ht:J-\r\11\IG DOCKET 

The teleconference convened, pursuant 

to notice, at 1:30 p.m. 

BEFORE: 

THE HONORABLE J.E. SULLIVAN, 

U.S. Administrative Law Judge 

(202) 234.4433 

NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234--4433 

MOTION TO DISMISS EXIITBIT A Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, WA 99201 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 Page I ofS (509) 624-3020 
EXHIBIT A 

Transcript of Teleconference on December 15,2016 

Extract of Pages I and 64-67 ' ' 

64 

1 Now, the FAA certainly has a -- and 

2 maybe I could do it differently, because we're 

3 talking about a motion to compel. Give me a 

4 minute as I look at this material again. 

5 I think I can short change thi,s, 

6 excuse me. Based on the materials that the 

7 parties have provided in the arguments that have 

8 been presented, I 1m going to grant the 

9 Respondent's motion to compel discovery partially 

10 at this time. 

11 And I will direct the FAA to disclose 

12 to the Respondent, in detail, how the FAA 

13 calculated its proposed civil penalty, which is a 

14 total of-- have to do that right away-- $11,000 

15 on the violation that it alleges that the 

16 Respondent committed. 

17 And the calculation information that 

18 is disclosed by the FAA should include and 

19 address all factors in affecting the sanction 

20 which should be 1 and is not limited to, the 

21 nature of the violation, including how safety was 

22 affected, whether the violation was inadvertent 

(202) 2344433 

MOTION TO DISMISS EXHIBIT A 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 1323 RHODE JSLANDAVE., N.W. WASHINGTON, D.C. 20005·3701 (202) 234"4433 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 99201 

Page 2 ofS (509) 624-3020 
EXHIBIT A 

Transcript of Teleconference on December 15, 2016 

Extract of Pages 1 and 64-67 

65 

1 and not deliberate, the attitude of the 

2 Respondent as the alleged violator, the degree of 

3 hazard, the action taken by the employer or other 

4 authority regarding the alleged violation, the 

5 use of certificate. 

6 The FAA should also identify what, if 

7 any, decisional law it utilized in calculating 

8 and coming to the proposed civil penalty. 

9 It should identify whether or not it 

10 utilized multiple violations or acts in 

11 calculating the proposed civil penalty, as well 

12 as considering the Respondent's ability to absorb 

13 the sanction, whether the violation was 

14 voluntarily reported, and whether the Respondent 

15 took corrective action, and whether such action 

16 was included in the calculation of the penalty. 

J.7 If there were any mitigating, 

18 extenuating, or aggravating factors that the FAA 

19 took into consideration in calculating the 

20 proposed penalty, the FAA should say so and 

21 identify them specifically. 

22 

(202) 234-4433 

MOTION TO DISMISS EXHIBIT A 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 

The FAA should also identify any 

NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RtlODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-4433 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

Page 3 of 5 (509) 624-3020 
EXHIBIT A 

Transcript of Teleconference on December 15, 2016 

Extract of Pages 1 and 64-67 

66 

1 exculpatory evidence it had in its possession, or 

2 does have in its possession at this time, that 

3 could be utilized by the Respondent in defending 

4 against the proposed civil penalty. 

5 When do you think you can get that 

6 information out, Ms. Stokley, to the Respondent? 

7 MS. STOKLEY: Your Honor, it 1 s going 

8 to take some time for me to meet with the Drug 

9 Abatement Off'ice and coordinate a response to 

10 that -- is this an order -- to your order? And 

11 so --

12 JUDGE SUIJLIVA..'!\f: Yes. I 1

m directing 

13 you to provide this information. And it really 

14 is the kind of information that should be 

15 disclosed in any of these cases. 

16 MS. STOKLEY: Your Honor, I can 

17 provide those when -- 1 1m looking at my calendar 

18 -- by the week of the 16th of January. 

19 JUDGE SULLIVAN: Well, I 1m looking at 

20 that calendar time as well. So the 16th is a 

21 holiday. Can you have this information provided 

22 to the Respondent by January 17, 2017? 

(202) 2344433 

MOTION TO DISMISS EXHIBIT A 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 

NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE .. N.W. WASHINGTON, D.C. 20005-3701 (202) 234-4433 

Conlin, Maloney & Miller 

42 I W. Riverside Ave., Ste 9 I 1 

Spokane, W A 9920 I 

Page 4 of 5 (509) 624-3020 
EXHIBIT A 

Transcript of Teleconference on December 15, 2016 

Extract of Pages 1 and 64-67 

67 

1 MS. STOKLEY: Yes, Your Honor. 

2 JUDGE SULLIVAN: So noted. So as of 

3 -- on or before January 17, 2017, the Court is 

4 directing you to provide that information. The 

5 Court~ is denying the motion to compel, in part, 

6 for disclosure of the actual EIR. 

7 I would agree that, Ms. Stokley, that 

s this particular information can be deemed as a 

9 work -- under the work product privilege, but it 

10 is disclosable in a different way, as the Court 

11 has directed it to be disclosed. 

12 As a result, I'm denying the 

13 Respondent's request for an on-camera review of 

14 the EIR. I don 1 t think that 1 s necessary. I'm 

15 also finding that the EIR is not fully 

16 disclosable simply because Mr. Wells was 

17 ·potentially identified as an expert witness and 

18 is now withdrawn. 

19 I understand what the Respondent 1 s 

20 argument is about that, but I simply don 1 t 

21 completely agree with the Respondent as to the 

22 scope of how much disclosure may be invoJ.ved, 

(202) 234-4433 

MOTION TO DISMISS EXHIBIT A 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 132.3 RHODE ISLAND AVE,, N.W. WASHINGTON, D.C. 20005"3701 (202} 234-4433 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

Page 5 of 5 (509) 624-3020